Last updated 20 May 2022
The Human Rights Act 2019 (Qld) (Human Rights Act) applies to decisions made by public entities in Queensland. This includes Queensland State Government departments, local councils, state schools, police and non-government organisations performing public functions. The Human Rights Act complements and strengthens administrative law recourse against government in Queensland.
The Human Rights Act alters judicial review in Queensland in three key respects:
- It expands existing grounds of statutory appeal, making it unlawful for government decision makers to act incompatibly with human rights.
- Applicants may piggyback human-rights arguments onto their judicial review actions.
- In deciding a judicial review application, the Supreme Court must interpret laws in a way that is compatible with human rights, including the laws that bind decision makers.
See the Human Rights Law in Queensland chapter for a more detailed explanation of the 23 protected human rights and freedoms, key operative provisions, an expanded explanation of what is included in the meaning of a ‘public entity’ and additional obligations on the Supreme Court when acting in an administrative capacity under the Human Rights Act.
Human rights and grounds of judicial review
The Human Rights Act introduces new obligations on government decision makers which, if not followed, may give rise to grounds for statutory review under the Judicial Review Act 1991 (Qld) (Judicial Review Act).
The Human Rights Act requires public entities to act or make decisions in a way that is compatible with human rights and, in making decisions, give proper consideration to relevant human rights (s 58(1) Human Rights Act).
In practice, a decision maker should:
- identify whether the act or decision places a limit on the applicants’ human rights and, if so, whether the limit is reasonable and under the test in s 13 of the Human Rights Act
- identify any human rights relevant to the decision, give proper consideration to relevant human rights and whether the decision would be compatible with the applicant’s human rights.
Failure to comply with these obligations is unlawful and may give rise to grounds for statutory review of the decision under the Judicial Review Act.
Possible grounds of judicial review that may include human rights arguments include failure to:
- take relevant considerations into account (ss 20(2)(b), 21(2)(b), 23(b) Judicial Review Act)
- observe procedures required by law (ss 20(2)(e), 21(2)(b) Judicial Review Act).
Under the Human Rights Act, a decision maker must give proper consideration to human rights when acting and making a decision (s 58(1)(b) Human Rights Act). Accordingly, the Human Rights Act both imposes relevant considerations on government decision makers, and constitutes a procedural obligation on a public entity not to fail to give proper consideration to a relevant human right in making a decision.
In Owen-D’Arcy v Chief Executive, Queensland Corrective Services  QSC 273, the court upheld a judicial review application on the grounds that the decision maker had failed to take relevant considerations into account where consideration of the applicant’s human rights was superficial at best, and the decision maker had failed to give proper consideration to all human rights relevant to the decision.
Human rights arguments during judicial review
There is no direct right to bring a Human Rights Act breach before the Supreme Court.
However, where a person is asking the Supreme Court to exercise its judicial review jurisdiction, they may also argue that the decision maker failed to consider their human rights as required by the Human Rights Act. This is commonly referred to as ‘piggybacking’ a Human Rights Act complaint to another legal action.
The Supreme Court is required to consider all human rights, not just those of the applicant, and the Human Rights Act does not create absolute rights. Human rights may be limited and balanced in a way that is consistent with a free and democratic society based on human dignity, equality and freedom (s 13 Human Rights Act).
Where the Supreme Court finds the decision maker has acted contrary to their obligations under the Human Rights Act, the Supreme Court may grant relief or remedy, but not monetary damages, for any breach of human rights.
Interpretation of laws
Statutory review is available under pt 3 of the Judicial Review Act in relation to decisions made under an enactment.
The Human Rights Act requires the Supreme Court to, as far as possible and while continuing to fulfil its purpose, interpret laws including the enactment under which the decision is made, and any other relevant laws, in a way that is compatible with human rights. If this is not possible, then laws must be interpreted in a way that is most compatible with human rights.
A law is compatible with human rights if it does not limit a human right, or limits a human right only to the extent that is reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom.
The Supreme Court can refer to international law and the judgements of Australian, foreign and international courts and tribunals when interpreting if a law is compatible with human rights.